People v. Milano, Cr. 33206

• Citation: 89 Cal.App.3d 153,152 Cal.Rptr. 318
• Decision Date: 02 February 1979
• Docket Number: Cr. 33206
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Frank Angelo MILANO et al., Defendants and Appellants.

Page 318

152 Cal.Rptr. 318

89 Cal.App.3d 153

The PEOPLE, Plaintiff and Respondent, v. Frank Angelo MILANO et al., Defendants and Appellants.

Cr. 33206.

Court of Appeal, Second District, Division 4, California.

Feb. 2, 1979.

Hearing Denied April 12, 1979.

James Edward Green, Van Nuys, for defendants and appellants.

George Deukmejian and Evelle J. Younger, Attys. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., S. Clark Moore, Asst. Atty. Gen., Edward T. Fogel, Jr., and Janelle B. Davis, Deputy Attys. Gen., for plaintiff and respondent.

ALARCON, Associate Justice.

Defendants have appealed from judgments of conviction for attempt to violate Penal Code section 337i (dissemination of gambling information). Defendants were jointly charged with attempted dissemination of gambling information in violation of Penal Code sections 664 and 337i and bookmaking in violation of Penal Code section 337a. As to each defendant, motions under Penal Code section 995 were granted with respect to charges of violation of Penal Code section 337a, and those charges were dismissed.

Prior to their respective trials, each defendant moved the court to dismiss the information on the ground that Penal Code section 337i was unconstitutional. Each motion was denied.

Defendant Callahan was tried by a court, trial by jury having been waived, and was found guilty of attempted dissemination of gambling information.

Defendant Plotkin was tried by a court, jury having been waived, and was found guilty of attempt to violate Penal Code section 337i, dissemination of gambling information.

Defendants Cuccia and Milano were jointly tried by court, jury trial having been waived, and were each found guilty of attempt to violate Penal Code section 337i, dissemination of gambling information.

Although three separate trials were held, the issues in each were remarkably similar and much of the evidence was identical. The testimony of Sergeant Dahler, of the Los Angeles Police Department, given during the Callahan trial, was, pursuant to stipulation, introduced by way of transcript into the Milano, Cuccia and Plotkin trials. In addition, most of the exhibits introduced in the Callahan trial were also used in evidence against the remaining three defendants. Similarly, the contentions on appeal concerning the constitutionality of the statute and its enforcement are raised by all four appellants.

Issues on Appeal

1. Penal Code section 337i is unconstitutional in that it is vague and overbroad and therefore infringes on the right of free speech;

2. Penal Code section 337i violates defendants' right to equal protection, in that the news media is expressly exempted from prosecution thereunder;

3. Defendants were subjected to discriminatory enforcement of that statute against them; and

4. There was insufficient evidence to support two of the four convictions.

Summary of Facts

The evidence established that each of the appellants operates a service disseminating information to subscribers. For a fixed fee, (in the Callahan case $25 per week) a subscriber may telephone a number provided by appellant and receive information concerning sporting events. For example, appellant Plotkin provided information concerning horse races. A subscriber would be informed of the post time of a race, late scratches, parimutuel payoffs, results of races, daily double payoffs, etc. Appellants Cuccia and Milano also provided information concerning horse races. Appellant Callahan provided information on baseball and football games. There was no evidence that any of the appellants accepted or offered to place wagers on any of the sporting events covered by their services, and as previously noted, charges of wagering were dismissed against all defendants.

The specific evidence against each defendant will be discussed in greater detail in the analyses of sufficiency of the evidence which follow.

Sufficiency of the Evidence

Penal Code section 337i provides as follows:

"Every person who Knowingly transmits information as to the progress or results of a horserace, or information as to wagers, betting odds, changes in betting odds, post or off times, jockey or player changes in any contest or trial, or purported contest or trial, involving humans, beasts, or mechanical apparatus by any means whatsoever including, but not limited to telephone, telegraph, radio, and semaphore when such information is transmitted To or by a person or persons engaged in illegal gambling operations, is punishable by imprisonment in the county jail for a period of not more than one year or in the state prison.

"This section shall not be construed as prohibiting a newspaper from printing such results or information as news, or any television or radio station from telecasting or broadcasting such results or information as news. This section shall not be so construed as to place in jeopardy any common carrier or its agents performing operations within the scope of a public franchise, or any gambling operation authorized by law." (Emphasis added.)

Appellant Plotkin contends that there is insufficient evidence to support a finding that he disseminated information concerning horseracing activities to persons who he knew were engaged in illegal gambling operations. Appellant Callahan contends that there is insufficient evidence to support his conviction for knowingly transmitting information regarding football and baseball games to persons engaged in illegal gambling activities. The following evidence was introduced against each of said appellants relative to the issue of knowledge.

(a) Plotkin

On July 7, 1977, Officer Karen Clarke of the Los Angeles Police Department dialed telephone number 877-7142 and spoke to defendant Plotkin. She identified herself as "Annie." She expressed an interest in defendant's service and he instructed her to mail to him $25 per week cash and thereafter to call in as frequently as she wanted every day and identify herself as "Mary." He gave her directions concerning how frequently she should call during the day in order to get precise post times and race results.

The officer began placing regular calls to the telephone number provided until July 22, 1977. She often called several times an hour throughout the day. On each call she was provided with race results and post time information.

Officer Dahler, whose expertise in bookmaking was stipulated to in each of the trials, testified that precisely accurate knowledge of the post time of each race is extremely important to bookmakers. If a race were to begin prior to the scheduled post time, which frequently happens, a bookmaker could take a bet from a bettor on a race which had already begun. The bookmaker would then be "past-posted," something considered a serious danger to bookmakers.

During the first conversation between Officer Clarke and defendant Plotkin, defendant asked her: "(D)o you take the east?" Later in another conversation he asked, "You take all of Belmont, right?"

In that connection, Officer Dahler testified that those questions have a particular meaning within the bookmaking community. He explained that defendant was asking whether Officer Clarke accepted wagers on all of the races at Belmont or on any of the tracks back east.

During the transmission of information in one of the early calls from Officer Clarke, defendant stated: "The second is 6, 3, 7. And there's no prices yet. And lock up. The fifth is already gone, . . ." Officer Dahler testified that in bookmaking terminology, "lock it up" means but one thing: "To close off the race." It is an instruction to the bookmaker to take no more bets on that race. On two other instances, defendant instructed Officer Clarke to "lock 'em all up."

On July 22, 1977, Officer Clarke and defendant discussed how much longer the races would be running at Belmont. The officer stated to defendant: "Ok, well, I think, I don't really have enough action to make Belmont worthwhile for me, so I'm just gonna just start taking Hollywood after today." Defendant responded: "Well, whatever you need honey, if you need anything from Belmont, I'll have it right here anyway." Officer Dahler testified that "action" means "bets" in bookmaking circles.

As the foregoing summary of the evidence clearly demonstrates, there is substantial evidence to support the conclusion of the trier of fact that defendant believed that he was providing information to a bookmaker. Viewing the evidence in the light most favorable to the People and indulging in every presumption in favor of the judgment (People v. Sweeney (1960) 55 Cal.2d 27, 33, 9 Cal.Rptr. 793, 357 P.2d 1049) we conclude that there was sufficient evidence to support the conviction of defendant Plotkin.

(b) Callahan

With respect to defendant Callahan, the evidence in support of knowledge is virtually nonexistent. On June 13, 1977, Officer Clarke telephoned defendant. She inquired about his service and was informed that she could call the phone number provided for baseball and football information for a sum of $50 per week, ". . . as long as you're not a bookmaker, bettor or going to use it for illegal purposes." The officer answered, "Oh, I see." Defendant repeated, "Alright, (sic) do you understand it's not to be used for illegal purposes?" The officer answered, "Uh, huh." On each occasion that the officer telephoned the defendant's place of business, she heard a transcription of a tape, which always began: "This information is not to be used for illegal purposes." Officer Clarke testified that at no time did she inform defendant Callahan that she was a bookmaker or that she intended to use the information for illegal purposes. During cross-examination, defense counsel asked Officer Clarke, "Isn't it true that you thereafter refrained from telling him outright that you were engaged in illegal gambling for fear you wouldn't get the information?" (P ) "A. I wasn't exactly afraid, but I assumed that if I told Mr. Callahan, 'I'm your...